SHRI. MADHAV PRASAD AGGARWAL, Mumbai V. ACIT 21(2), Mumbai

ITA 614/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3006 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 05-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JYOTHILAKSHMI NAYAK
• Keywords: Depreciation
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 614 / MUM . /20 19 ( ASSESSMENT YEAR : 20 13 14 ) ITA NO. 615 /MUM. /2019 ( ASSESSMENT YEAR : 2014 15 ) SHRI MADHAV PRASAD AGGARWAL MATULYA CENTRE, A 2, GROUND FLOOR SENAPATI BAPTA MARG, MUMBAI 400013 PAN AABPA6137H . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 21 ( 2 ), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : MS. JYOTHILAKSHMI NAYAK DATE OF HEARING 04 .0 3 .2020 DATE OF ORDER 13.03.2020 O R D E R PER SAKTIJIT DEY. J.M. A FORESAID APPEALS BY THE ASSESSEE ARISE OUT OF A COMMON ORDER DATED 6 TH DECEMBER 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 33, MUMBAI, FOR THE ASSESSMENT YEAR S 2009 10, 2013 14 AND 2014 15. HOWEVER, PRESENTLY, WE ARE CONCERNED WITH THE APPEALS RELATING TO ASSESSMENT YEAR S 2013 14 AND 2014 15. 2 SHRI MADHAV PRASAD AGGARWAL 2. WHEN THE APPEAL S WERE CALL ED FOR HEARING NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. THERE IS NO APPLICATION SEEKING ADJOURNMENT EITHER . ACCORDINGLY, WE PROCEED TO DISPOSE OFF THE APPEAL S EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILAB LE ON RECORD. 3. THE FIRST COMMON ISSUE RELATES TO PART DISALLOWANCE OF EXPENDITURE INCURRED TOWARDS POSTAGE, TELEPHONE, TRAVELLING, CONVEYANCE AND SALES PROMOTION. 4. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICING THAT THE ASSESSEE HA D DEBITED EXPENDITURE UNDER VARIOUS HEADS CALLED UPON THE ASSESSEE TO FURNISH THE DETAILS AND ALSO TO ESTABLISH THAT SUCH EXPENDITURES WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. ALLEGING THAT THE ASSESSEE FAILED TO FURNISH REQUIRED E VIDENCE S TO SHOW THAT THE ENTIRE EXPENDITURE WAS FOR THE PURPOSE OF BUSINESS, THE ASSESSING OFFICER DISALLOWED 20% OF THE EXPENDITURE CLAIMED. BEING AGGRIEVED WITH SUCH DISALLOWANCE, THE ASSESSEE PREFERRED APPEAL S BEFORE THE FIRST APPELLATE AUTHORITY. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) OBSERVED THAT THE ASSESSEE HAS NOT MAINTAINED THE REQUIRED EVIDENCE 3 SHRI MADHAV PRASAD AGGARWAL TO JUSTIFY THE ENTIRE EXPENDITURE CLAIMED. HE ALSO OBSERVED THAT THE ASSESSEE HAS NOT MAINTAINED ANY LOG BOOK FOR TELEPHONE EXP ENDITURE, TRAVEL EXPENSES, ETC. TO ESTABLISH WHETHER ANY PERSONAL ELEMENT IS INVOLVED OR NOT. THUS, HE HELD THAT THE ENTIRE EXPENDITURE CLAIMED BY THE ASSESSEE CANNOT BE ALLOWED. HOWEVE R, HE REDUCED THE QUANTUM OF DISALLOWANCE TO 10% OF THE EXPENDITURE CLAIMED. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , WHILE DECIDING IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEA R 2008 09 , THE TRIBUNAL HAS SUSTAINED THE DISALLOWANCE @ 10%. 7. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, BOT H, THE ASSESSING OFFICER AND LEARNED COMMISSIONER (APPEALS) HAVE DISALLOWED A PART OF THE EXPENDITURE CLAIMED U NDER VARIOUS HEADS SINCE SUPPORTING DETAILS TO ESTABLISH THAT THE ENTIRE EXPENDITURE CLAIMED WAS FOR THE PURPOSE OF BUSINESS WAS NOT FILED BY THE ASSESSEE. FURTHER, IN RESPECT OF SOME EXPENDITURE, SUCH AS , TELEPHONE, TRAVEL, ETC., THE ASSESSEE FAILED TO FU RNISH ANY LOG BOOK TO DEMONSTRATE THAT NO PERSONAL ELEMENT IS INVOLVED. THE FACTUAL POSITION REMAINS IDENTICAL BEFORE US. FURTHER, IT IS NOTICED THAT IN RESPECT OF SIMILAR EXPENDITURE CLAIMED IN ASSESSMENT YEAR 2008 09, THE TRIBUNAL HAS CONFIRMED DISALLOWA NCE @ 10%. CONSIDERING THE ABOV E, WE UPHOLD THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON THE ISSUE . 4 SHRI MADHAV PRASAD AGGARWAL 8. THE NEXT COMMON ISSUE RAISED BY THE ASSESSEE IS WITH REGARD TO DISALLOWANCE OF DEPRECIATION ON MOTOR CAR PURCHASED IN THE NAME OF EMPLOY EE . 9. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICING THAT THE ASSESSEE HAS CLAIMED DEPRECIATION ON MOTOR CAR PURCHASED IN THE NAME OF ONE OF ITS EMPLOYEE IVAN FERNANDIS DISALLOWED THE SAME ON THE REASONING THAT SIMILAR CLAIM WAS DISALLOWED IN ASSESSMENT YEAR 2012 13. THE ASSESSEE CHALLENGED THE AFORESAID DISALLOWANCE BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) OBSERVED THAT THE ASSESSEE HAS NOT PRODUCED ANY CO RROBORATIVE EVIDENCE LIKE LOG BOOK TO PROVE THAT THE CAR WAS USED FOR THE BUSINESS PURPOSE OF THE ASSESSEE. HE ALSO NOTICED THAT SIMILAR CLAIM MADE BY THE ASSESSEE IN ASSESSMENT YEAR S 2012 13 AND 2013 14, WAS ALSO DISALLOWED. CONSIDERING THE ABOVE, LEARNED COMMISSIONER (APPEALS) DISALLOWED ASSESSEES CLAIM OF DEPRECATION. 10. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. AS COULD BE SE EN FROM THE FACTS ON RECORD, ASSESSEES CLAIM OF DEPRECATION WAS NOT ONLY DISALLOWE D BECAUSE OF THE FACT THAT THE MOTOR CAR WAS REGISTERED IN THE NAM E OF THE EMPLOYEE, BUT ALSO DUE TO THE FACT THAT THE ASSESSEE FAILED TO 5 SHRI MADHAV PRASAD AGGARWAL FURNISH THE REQUIRED EVIDENCE TO SHOW THAT THE VEHICLE WAS USED FOR THE PURPOSE OF ASSESSEES BUSINESS. IT IS FURTHER NOTICED , SIMILAR CLAIM MADE BY THE ASSESSEE IN ASSESSMENT YEAR 2012 13 WAS ALSO DISALLOWED BY THE ASSESSING OFFICER. NOTHING HAS BEEN BROUGHT TO OUR NOTICE BY THE ASSESSEE TO SHOW THAT THE DISALLOWANCE MADE IN THE EARLIER ASSESSMENT YEAR WAS DELETED SUBSEQ UENTLY . IN VIEW OF THE AFORESAID, WE ARE NOT INCLINED TO IN TERFERE WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS). GROUND S RAISED BY THE ASSESSEE IN BOTH THE APPEALS A R E DISMISSED. 11. IN THE RESULT, APPEAL S ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 13.03.2020 SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 13.03.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI